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Fiat Justitia

Kevin Cross

Reflections on Judging, by Richard A Posner, Harvard University Press, 332 pp, £22.95, ISBN: 978-0674725089

In 1625, the then chief justice of England, Sir Ranulph Crew, gave judgment after the death of the 18th Earl of Oxford concerning the possible preservation of the male line of the de Veres and said:

I have laboured to make a covenant with myself that affection may not press upon judgment; for, I suppose, there is no man that hath any apprehension of gentry or nobleness but his affection stands the continuance of so noble a name and home and would take hold of a twig or twine-thread to uphold it. And yet Time hath his revolutions; there must be a period and an end to all temporal things, finis rerum, an end of names and dignities and whatsoever is terrene; and why not of de Vere? - for where is Bohun? Where is Mowbray? Where is Mortimer? Nay, what is more and most of all where Plantagenet? They are entombed in the urns and sepulchres of immortality.

I do not think that Judge Richard A Posner would understand or sympathise with Chief Justice Crew’s dilemma.

Judge Posner’s latest book has been published as a handbook for prospective judges, and in particular, prospective appeal judges. In the light of the imminent establishment of the Court of Appeal in Ireland, I hope that this book and the vast majority of the theories it advocates will not be sympathetically adapted by the new appointees. Richard A Posner is the circuit judge of the United States Court of Appeal for the seventh circuit and senior lecturer at the University of Chicago Law School. He is a phenomenon, and indeed a celebrity, who is the leading advocate of a school of jurisprudence known as economic realism. Like all senior American judges, he has a veritable army of judicial assistants to help him research his decisions (or Opinions, as he calls them) but unlike most he has his own webpage on which he posts his observations on controversial political topics of the day. He has engaged in robust if not violent controversy with judicial colleagues, including judges of the United States Supreme Court whose views he does not accept. On his website, he discusses issues such as abortion rights (in favour) and the war on drugs (against). In his latest work, he describes the judge, and indeed the appellant judge, as a “legislator” who is not bound by the conventional rules of judging and precedents. Judge Posner would fit into the description of an economic conservative, and, at least in later years, a social liberal. He is surely, therefore, in tune with his times. His views on matters of political controversy are as well known as those of candidates for the Oval Office. It must be said the Posner expresses these views far more eloquently and with far less fear of alienating his supporters than would be safe for any political candidate. If one were to compare him with the judges of this jurisdiction, without fulltime secretaries or researchers, and who rightly impose silence upon themselves, one might say of Judge Posner “happily, how far removed from the courts of our own dear Queens”.

Judge Posner’s judicial philosophy of economic realism follows, he would say, from the principles of the distinguished Supreme Court judge Oliver Wendell Holmes, and the realist school, which hold that decisions should be made, not necessarily on precedents, but on utility. Conventional realism faces the, to my mind, unanswerable objection that legal decisions become, in effect, “whatever you’re having yourself”. As Lord Atkin famously said in his dissenting judgment in Liversidge v Anderson:

I know of only one authority, which might justify the suggested method of construction. ‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be the master, that’s all.’

We do not live in a Humpty Dumpty, Alice in Wonderland, Mad Hatter’s tea party world and anybody who engages in rational argument, even Judge Posner, must subscribe to the objective meaning of words. Indeed, if words mean merely what I want them to mean, nothing more nothing less, Judge Posner may think that he has written a work of reflections on judging but I, as the reader, may believe that he is commenting on the football results.

The economic realists, such as Posner, suggest to overcome objections that utility is an unverifiable economic formula, that one allocation of resources is better than another if at least one person is better off and no person is worse. I would suggest that this so-called “economic realism” offers no better scientific practical basis for judging than the classic utilitarianism. The measurement of one person being better off and no person being worse off largely depends upon the judge’s state of digestion. Posner discusses the question of the balance of advantage of long custodial sentences on the basis of a comparison that the court should make between the possible result of an increase in crime, on the one hand, (if lenient sentences are imposed – yet no evidence is suggested to support the view that this is an outcome of lenient sentences), and the extra cost to the state involved in imprisoning persons for a long period. Posner seems to conclude that once a prisoner has become sufficiently old and feeble, he is unlikely to return to crime and there the balance should lie. He does not, however, gives any assistance as to how any judge should scientifically approach the consideration of the balance of economic advantages if, indeed, that should be the main ‑ or any ‑ consideration in deciding criminal appeals. Any such exploration of the economic costs of decisions would require a judge to hear lengthy evidence from economists, sophists and calculators, of itself an unnecessary burden on public funds. In my view, not alone is economic realism just as unscientific, subjective and impractical as classical utilitarianism; it is also fundamentally flawed. I have unfortunately noticed, on one or two occasions, what might be seen as the toe of “economic realism” entering the door in this jurisdiction, with remarks in decisions such as “one man’s compensation damages is another man’s premium increase” without there being any attempt to find evidence to support such a proposition.

Happily, however, economic jurisprudence is not the main theme of the work under consideration. In Reflections on Judging, Judge Posner attacks what he describes as “legal formalism”, as opposed to “legal realism”. He does have many sensible things to say to judges about writing their decisions/Opinions with clarity, using ordinary language and how judges should use their army of assistants to research, and not actually to write, their judgments.

Posner is of the view that “judicial self-restraint” is a dead letter in the United States. Judicial self-restraint involves the proposition that judges apply the law, they do not make it and that judges respect the independence of decision makers and do not lightly interfere with them. In the United States, Posner argues, the constitutional battles are not fought between liberal judges who are interventionists and conservative judges who are for the minimalist precedent-bound interpretation of the law, but rather, since Roe v. Wade, between liberal interventionists and conservative interventionists, all of whom, as a matter of practice, discard and take up precedents at will as long as these suit the judge’s own views. It is not within my remit, or indeed skill set, to discuss any decline in American jurisprudence and the politicisation of their courts since Roe v Wade.

Posner also argues that judges should get out more and learn scientific ways so that they can be conversant with the latest technology. He does not merely mean that judges should have a good general education. He means that judges should be able to use their knowledge so that they themselves can assess scientifically the evidence before them. Advising judges on how to write their Opinions/decisions, Posner does not include any advice along the lines that I was given by the former Supreme Court Judge Mr Justice Frank Murphy, namely, to read over any decisions the night before, and when you come to the line that gives you the most pleasure, to cut it out. I do not think that Judge Posner would understand that advice.

Judges are not meant to be celebrities. We are not meant to be noticed in society. Our function is to make decisions on the evidence before us as to whether a piece of confectionery is a biscuit or a bar (or just possibly a biscuit in a bar). When a judge makes that decision, he should do so bearing in mind another maxim which Posner would not accept, that a judge should decide as little as necessary. If I decide that the piece of confectionery is a biscuit in a case about the rate of VAT on biscuits, my decision should not preclude a colleague from holding that the same item is a bar for the purposes of examining an ordinance banning the sale of bars on school premises.

The late Gerard A Lee SC, in his review of the later years of the Munster Circuit, said of former Circuit judge Timothy N Desmond that his “decisions were many but his judgments were few”. I fear that Lee meant this as a criticism of Judge Desmond but for me decision-making is what we do.

The best piece of jurisprudential advice I ever heard was given by the then father of the Irish Bar and former taoiseach John A Costello SC, who addressed the students of King’s Inns in 1975, some months before he died, and told us that in any case, it is quite likely that there will be two lines of authority, one leading to the plaintiff’s side and the other to the defendant’s. He added that in 90 per cent of cases before 90 per cent of judges, the line of authority that will be accepted is not the line with apparently the best pedigree, but the line which leads to the decision which most approximates to that judge’s sense of justice and fairness ‑ it is no coincidence that the second most profound comment on jurisprudence I have heard was given by another former practising barrister and taoiseach, Jack Lynch, who said “it is a brave man who will predict what the Irish Supreme Court will do on any given occasion”.

I would suggest that in Ireland the central thread of almost all decisions in all our courts is Costello’s search for justice and fairness. What Costello stated might, at first glance, seem similar to the position of the realist school; in my view it is the reverse of it. Judges operate by rules (pejoratively called formulaic by Posner), rules known to all lawyers and to judges and they operate and act on the evidence that is before them and draft their decisions to bring about a judgment that most approximates to a vision of justice barely glimpsed by the light of our fires as we sit in our Platonic caves. If we seek justice, we seek an objective truth. We will never, of course, achieve that objective but justice and fairness are the standards by which we should judge and be judged. If all we can say of justice is that we must seek to do good and avoid doing harm, we are saying a great deal. There will be frequently room for interpretation in the law and that is when the good judge chooses justice and fairness. We cannot ignore what has been established law for generations merely because we disagree with it. Sometimes there will be nothing that we can do other than to have a “Plantagenet” moment. The realist does not believe in an objective concept such as justice, but thinks he can “scientifically” substitute a formula based on utility or economics.

For Posner, a judge, even an appellant judge, can and should find facts himself that do not spring from the evidence. A judge is, as he claims, a legislator, seeking not to interpret statutes, but to change them, if necessary, to fit whatever purpose Posner thinks to be laudable:

Where legislative purpose ... is discernible, the Realist judge is an interpreter, or perhaps a helper. But often it is not discernible, and then the judge is the legislator and has to base decision on his conception of sound public policy within the limits the legislators have set. And when that is the case, the judge must, like other legislators, consider, among other things, the likely consequences of a decision one way or another ...

This view that Posner holds is, I would suggest, a direct and, indeed, a flagrant breach of the principle of the separation of powers. Judges rightly protest when the executive or the legislature breach the separation of powers by telling judges what to do. So judges, who call upon the legislature and executive to show restraint, should themselves be the first to exercise restraint. Judges have no business in telling the legislature what laws they should pass or how public policy should be ordered. It is because of the job we hold that we must refrain from the liberty of having our own websites or peddling our political views. Similarly, the legislature and the executive have no business regarding judges as “mere civil servants”. Judges are one of the arms of government. We are independent, not just in the sense that we should not receive a phone call telling us what to do, but also independent in how we organise the courts and how we go about our business. This second leg of judicial independence is frequently ignored. As an arm of government, our role is confined to the making of decisions on the cases before us based upon the evidence before us. I do not believe that Judge Posner really cares for evidence. He attacks the ability of judges (central to the common law system) to assess the credibility of witnesses. An appellant judge is, apparently, just as capable of that task even though he has not seen the witness testify in front of him.

When I was a barrister on the Munster Circuit, I recall the great Circuit Judge Fawsitt, who hawk-like would observe witnesses, not just as they gave evidence, but while they took the oath, and indeed before they came to give their evidence and even after they had given it. He would observe who they sat with and how they interacted so as to ascertain, with remarkable skill, who was telling more of the truth and who (more than the other) was trying to deceive him.

A breach of the separation of powers might seem an academic complaint. But Judge Posner goes far further, advocating that a judge and an appellant judge should, not alone pay scant regard to the decision of the lower court, but he should himself act as an evidence provider. A judge, Posner argues, should be able to find reasons for a decision on grounds not argued before him on appeal or before the original court without the inconvenience of allowing the parties to air their views on the points. More fundamentally, Posner advocates that a judge, and indeed, an appeal judge, can decide if necessary on factual “evidence” in the appeal that the judge has found himself which was never adduced in court and never subjected to argument or examination or cross-examination.

In this regard, I believe that Judge Posner runs entirely counter to one of the basic principles of natural justice: audi alteram partem. This maxim implies that no judicial or quasi-judicial decision can be taken without giving the party affected an opportunity of stating his case or being heard in his own defence.

Judge Posner advocates that judges should use the internet to obtain facts they consider relevant which have not been argued or tested in evidence. He boasts that he has used the internet to aid him in cases involving the treatability of remote wiping of cell phones and of recovering deleted files on laptops. He sneers at lawyers who are unhappy when appellant judges “go outside the record that the lawyers have shaped”. In other words, Posner is decrying a basic fundamental principle of natural justice without which the rule of law cannot flourish: if an appellant or any judge can find “evidence” out of the internet or elsewhere, that “evidence” is never tested in the trial. The parties affected by the judge’s actions have no opportunity to challenge the validity of the “evidence” upon which the judge will decide the case. Judge Posner also boasts that he has used the internet and research to discover evidence about a particular “Brother Jim” who had an intense hostility to homosexuality and who sued a college which had refused him permission to give a speech on the College lawn. Judge Posner ascertained via the internet that Brother James had indeed a distinct aversion to homosexuality. He did not refer to this hostility in his written “Opinion” but he did refer to Brother James’s confrontational style and referred to other information gleaned from the web that the campus in question was an undergraduate campus with presumably a more impressionable student body but added, somewhat implausibly, that “none of my gleanings from the web informed our decision”.

In a criminal appeal, in which the issue concerned the lawfulness of an arrest for criminal trespass, the case turned on whether a police parking lot was land “supported in whole or in part by State funds”. Posner criticised the lawyers for both the prosecution and the defence as being inept and suggested that they had not given sufficient evidence or argument that would enable him to decide the point based upon what was said in court. He proceeded to Google a map of the parking lot (photographed, it seems, long after the incident in question) and as a result of studying the Google map decided against the accused. Posner notes much legal criticism of him for adopting such an approach but he says that he is “unrepentant”.

This difficulty with a judge (and all the more so with an appellant judge) plucking facts from the internet and using them, in effect, to inform his decision, is not a lawyer’s quibble; it is a fundamental breach of the search for justice and ought, I believe, be grounds for impeachment.

Posner agrees that the internet can sometimes be unreliable ‑ what source of “evidence” is not potentially unreliable? This is why, in the common law tradition, we test all evidence and subject it to examination and cross-examination. If a judge gets “facts” from the internet, why not from the Bible? Or the Koran? Or indeed, from his daily horoscope? We could subject an accused to trial by drowning ‑ they float, they were guilty of witchcraft, they drown, they were innocent. It is not good enough for a judge like Posner to believe that just because he may be more intelligent than the lawyers in front of him that he can pick and choose “facts” which remain untested and unargued by stupid counsel.

There is an inevitable disease which befalls all judges, the Judges’ Disease (or Krititis). Judges must realise that we are exposed to constant flattery ‑ “Good shot, Judge!” “Oh, a freak gust of wind must have carried it offline!” or “You were quite right in that case, Judge, the Supreme Court went mad!” Sooner or later, all judges fall victim to Krititis. The only hope is that we may catch a benign version which makes us merely pleasantly self-important. The malign version of Krititis can cause us to believe the flattery and behave with arrogance of sufficient kind that injustice can ensue. When the state’s resources permit, the first addition to our staff should not be judicial researchers. Rather, like Roman generals at their triumphs, we should have someone at our side whispering into our ears “remember you are mortal”.

How is it that Judge Posner has got it all so dramatically wrong? I have little doubt that the answer lies in his pre-judge career. He graduated as a star student from Harvard Law School, and in 1962, was immediately “headhunted” to clerk for Judge Brennan of the United States Supreme Court. After his time there, when about to enter private practice, he was given a job as an assistant to the Federal Trade Commissioners for some two years and there developed his interest in economics. Next, he went to the Solicitor General’s Office, where he argued six (yes, six) cases in the Supreme Court. After his second year at the Solicitor General’s Office, he commenced a fulltime teaching career, first, at Stanford, and later at the University of Chicago. In 1981, after many years teaching, he was appointed as a federal judge of appeal of the Seventh Circuit.

Posner’s entire legal life, apart from two years in practice where he apparently argued six cases in court, was spent in an office or at a university. In short, he gets it so wrong because he did not get out and about more himself. Indeed, Posner states that the only basis on which he took the substantial reduction in income involved in becoming a judge was that he was able to augment his judicial salary with substantial income from academia. In Ireland, judges have, to date, taken strictly the constitutional prohibition on holding “any other office or position of emolument”. In Ireland we believe that we are prohibited from receiving any salary other than our judge’s pay. In passing, I might say that facile comparisons of Irish judicial pay with that of judges in other jurisdictions fail to take account of the fact that in the United States of America, judges can earn and like Judge Posner do earn substantial sums from other sources.

Posner’s appointment was ratified by the Senate Judiciary Committee. In Ireland, some people advocate that judges should be “depoliticised” by having themselves appointed, or their appointments ratified, by a committee of the Oireachtas. It seems to me that a more blatant politicisation of judges could not be envisaged. Indeed, Judge Posner refers to the fact that in the States some judges’ ratifications have recently been held up or vetoed because a judge’s perceived politics does no coincide with the majority of the Senate. The appointment or the ratification of judges by parliamentary committees would ensure a candidate’s political or social views are questioned and canvassed and then became the basis of future assessment of that judge and of that judge’s decisions.

I believe that Judge Posner’s approach to judging stems from the fact that his training was as an academic and not as a practitioner. Whatever method of appointment of a judge exists, I believe it is vital that any proposed appointee to any judicial office has many years of practical experience in litigation. Academics, however learned, can never surpass the practitioner’s experience in litigating cases. A practitioner soon learns what will and will not succeed in the common law court. A few weeks, or indeed a few years, of a course in the law of evidence in King’s Inns or elsewhere will not suffice. The common law system is based on the testing of evidence. This differs from the continental civil law system, which sometimes seems to take certain facts as being “objective”. The testing of evidence requires many years trial experience. Judge Posner, from his perch in academia, satisfies himself that he is brighter than many of the advocates before him. As a result, he feels that he can invent the law and conjure up facts to suit his purpose. That belief of the economic realist is worlds away from Costello’s practically based idealism born from decades of litigation in the courts. If, in future, governments appoint academics as judges, they will get persons who believe, with Posner, not only they are brighter than the advocates before them but that they can tell both sides what they should have argued, and indeed tell the legislature and the executive what they really meant when they enacted a statute.

To justify his beliefs, Posner posits a false dichotomy between realists (good, sound word) and formalists (stuffy, pejorative word) and he creates a series of windmills at which he tilts with great theatrical effect. Realism sounds like commonsense. Who could be opposed to realism except the unrealistic? In fact, what Posner decries as “formalism” is merely what is required and expected of judges. The decision of a judge ought to be in accordance with the law as prescribed in Ireland by our constitution, by statute and by precedent. Decisions should be as objective as possible, based on where the legal evidence leads and not based on a judge’s view of how society ought to work. Society rightly expects a judge to set his own bias and prejudices and views aside and apply the rules, the rules set out by precedent and by statute and by the sonstitution. For a judge to apply the rules, even when he believes them to be stupid, is a difficult task requiring judicial restraint. That restraint is not something obsolete, as Posner suggests, but a vital factor for the just operation of the rule of law. The rule of law requires trust, trust between the advocates and each other and between the advocate and the judge. The advocate trusts that the judge will not decide that water flows uphill because of the state of his digestion, and the judge trusts that the advocate will never urge the court that water does, of itself, naturally flow uphill.

It is only from years of practice in the courts that a judge will be able to realise that he must trust the advocate and the advocate will realise that if he breaches that trust it can never be repaired. The judge seeks, as Costello said, justice and fairness. These are objective ideals and the judge will apply the law with that objective in mind. Should, at some future date, a rogue government utilise some apparently constitutionally legitimate means, say, Article 28(3)(iii), to abolish liberties and should the military commander advise us all to return to our homesteads as “order has been restored”, it is to be hoped that some brave judge will try to avoid evil and to do good by evoking a higher natural law to decree the state’s actions as unlawful. Historical precedence, however, suggests that placemen will always be found to execute the enemies of the state on, if necessary, judicial meat hooks. We should not hold our breath. As long as democratic liberty persists, we should expect our judges to obey the rules. Where judges obey the rules public respect for the law and the independence of judges remains. If we invent the law and indeed the facts and mould them to our own purposes people will rightly regard us not as mere civil servants but as mere legislators. Judge Posner may be pleased but one of the pillars of a free society will have been damaged.

As Professor John M Kelly famously stated in the introduction to the second edition of his Fundamental Rights in the Irish Law and Constitution:

But only the most outrageous law, which every honest conscience would recognise as wicked in all circumstances, is so clearly repugnant to the natural law that every honest judge could be expected to declare it void; and, as I have said, the practical political conditions in which such a law was enacted would not be conditions in which the opposition of a judiciary would be likely to be effective. Therefore, I repeat, the ultimate protection of human rights in a democracy lies with the people themselves. If they allow villains into government, a piece of paper will not protect them from the consequences, nor must they expect a few learned men in wigs and gowns to save the fools from the knaves that they have elected.

Judge Posner may not subscribe to the natural law, but he has, I believe, an inflated, unsound and dangerous view of the role of judges, born of the fact that he, in earlier life, did not take his own advice and get out more often. All is vanity. If judges obey the rules, they will make wise, if limited decisions which will help to preserve our democratic society and the rule of law. None of us, not even Judge Posner, is destined to be remembered. What we do is far more important than that. Ultimately, in order to be good judges we must be able to say, if only rarely, where indeed Plantagenet?

22/04/2014

Kevin Cross is a High Court judge.

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